USA v. Eugenio Ceballos-Silva

Filing

UNPUBLISHED OPINION FILED. [11-10275 Affirmed ] Judge: PEH , Judge: WED , Judge: JWE Mandate pull date is 01/04/2012 for Appellant Eugenio Ceballos-Silva; granting motion for summary affirmance filed by Appellee USA [6848867-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6848867-3] [11-10275]

Case: 11-10275

Document: 00511695326

Page: 1

Date Filed: 12/14/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 11-10275
Summary Calendar

December 14, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EUGENIO CEBALLOS-SILVA,
Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:10-CR-50-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Eugenio Ceballos-Silva appeals the sentence imposed following his guilty
plea conviction for one count of illegal reentry following deportation in violation
of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. As conditions of Ceballos-Silva’s
three-year term of supervised release, the district court ordered, inter alia, that
he “participate in sex offender treatment services as directed by the probation
officer until successfully discharged,” that he “not have any form of unsupervised
contact with persons under the age of 18 at any location . . . without prior

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

Case: 11-10275

Document: 00511695326

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Date Filed: 12/14/2011

No. 11-10275
permission of the probation officer,” and that he “have no contact with the
victim(s) . . . except under circumstances approved in advance by the probation
officer.”
Ceballos-Silva contends that the district court plainly and reversibly erred
when it impermissibly delegated to the probation officer its authority to order
him to attend sex offender treatment, as well as its authority to regulate his
contact with minors and his own children. He notes that his argument is
foreclosed by United States v. Rodriguez, 558 F.3d 408 (5th Cir. 2009), and
United States v. Bishop, 603 F.3d 279 (5th Cir.), cert. denied, 131 S. Ct. 272
(2010), but seeks to preserve the issue for further review. The Government has
filed a motion for summary affirmance arguing that Ceballos-Silva’s argument
is foreclosed by Rodriguez and Bishop. In the alternative, the Government
requests an extension of time in which to file a brief on the merits.
“There are no published decisions in this Circuit that address the statutory
and constitutional limits on a district court’s authority to delegate to a probation
officer the determination of whether and to what extent a convicted defendant
on supervised release must participate in counseling.” Bishop, 603 F.3d at 281.
Therefore, as Ceballos-Silva concedes, he cannot show that the district court
committed reversible plain error when it ordered that he participate in sex
offender treatment services as directed by the probation officer. See id.
Ceballos-Silva’s contention that the district court plainly and reversibly
erred when it impermissibly delegated to the probation officer its authority to
regulate his contact with minors and his own children is likewise without merit.
Ceballos-Silva was sentenced to three years of supervised release and the
association restrictions did not completely prohibit him from contacting any

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Case: 11-10275

Document: 00511695326

Page: 3

Date Filed: 12/14/2011

No. 11-10275
minors or victims, including his own children. See Rodriguez, 558 F.3d at 416.
The district court’s delegation to the probation officer of its ability to implement
and approve any exceptions to these restrictions did not constitute an abdication
of its judicial authority. See id. at 416-17. Therefore, Ceballos-Silva has not
shown that the district court abused its discretion in imposing this special
condition of supervised release. See id.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, its alternative motion for an extension of time to file a brief is
DENIED, and the judgment of the district court is AFFIRMED.

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